Opinion
No. 190A99
Filed 8 October 1999
Homicide — first-degree murder — second-degree instruction not required
A Court of Appeals decision that the trial court erred in a first-degree murder prosecution by failing to instruct the jury on the lesser-included offense of second-degree murder is reversed for the reason stated in the dissenting opinion in the Court of Appeals that there was no evidence to support a finding by the jury that the murder was not premeditated and deliberate.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 513 S.E.2d 794 (1999), holding that the trial court erred by not instructing on the lesser-included offense of second-degree murder, thus vacating the judgment entered 7 October 1997 by Martin (Jerry Cash), J., in Superior Court, Guilford County, and ordering a new trial. Heard in the Supreme Court 20 September 1999.
Michael F. Easley, Attorney General, by Robert C. Montgomery, Assistant Attorney General, for the State-appellant.
Malcolm Ray Hunter, Jr., Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellee.
For the reasons stated in the dissenting opinion by Judge Lewis, the decision of the Court of Appeals is reversed.
REVERSED.